Lavenstein v. Maile

• Decision Date: 29 April 1926
• Citation: 146 Va. 789
• Parties: HARRY H. LAVENSTEIN v. CLIFFORD B. MAILE.
• Court: Virginia Supreme Court

Page 789

146 Va. 789

HARRY H. LAVENSTEIN v. CLIFFORD B. MAILE.

Supreme Court of Virginia, Richmond.

April 29, 1926.

1. DEMURRER TO THE EVIDENCE — Demurrer to the Evidence by One Defendant — Refusal to Permit Plaintiff to Introduce Further Evidence — Section 6117 of the Code of 1919. — In the instant case, an action by plaintiff against two defendants for damage to plaintiff's automobile resulting from a collision alleged to have been caused by the negligence of the defendants, after plaintiff had rested his case in chief, one of the defendants demurred to the evidence on the ground that no evidence had been produced to show that the driver of one of the automobiles involved was his agent; whereupon counsel for plaintiff asked leave to recall the plaintiff as a witness for the purpose of supplying proof of such agency. This the court refused to permit on the ground that the plaintiff had closed his case and sustained the demurrer.

Held: That under section 6117 of the Code of 1919, it was error on the part of the court to refuse to permit the plaintiff to introduce additional evidence; but although plaintiff might have complained of this action, the co-defendant (appellant) was not prejudiced thereby, nor by the court's refusal to permit the jury to assess damages against the demurrant before the case was further proceeded with.

2. JOINT TORT FEASORS — Joinder — Plaintiff Might Elect to Sue Jointly or Severally. — The general rule is that any number of tort feasors may be joined in the same action, where all are alleged to have participated in the wrong. They may be sued jointly or severally, at the election of the plaintiff; and this is true notwithstanding there may exist a difference in the decree of liability, or the quantum of evidence necessary to establish such liability.

3. NEGLIGENCE — Concurrent Negligence of Several Persons — Joint and Several Liability. — When the negligence of two or more persons concurs in producing a single indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action.

4. AUTOMOBILES — Collision — Co-Defendants — Demurrer to the Evidence by One Co-Defendant — Case at Bar. — In the instant case, plaintiff brought suit against appellant and another for damages arising out of an automobile accident. Appellant could not be held liable in any course of procedure that plaintiff might have seen fit to adopt unless it was shown that his negligence caused or concurred in the wrong complained of. He, therefore, suffered no prejudice when, upon demurrer to the evidence by the other defendant, the court refused to permit the jury to retire and assess plaintiff's damages against such other subject to the ruling of the court on the demurrer.

5. AUTOMOBILES — Collision — Appeal and Error — Conflicting Evidence for Jury. — The instant case arose out of an automobile accident. The testimony for the plaintiff was that just before the accident defendant swerved his car to the left of the road. Defendant's testimony was to the effect that he did not turn to the left but at the time of the accident his car was well over on the right side of the concrete roadway.

Held: That the question of fact presented by this conflict was for the jury, and, the jury having resolved it in plaintiff's favor, the appellate court was bound to accept it as conclusively established that at the time of the accident defendant was driving on the left side of the concrete road.

6. NEGLIGENCE — Violation of Statute or Ordinance — Proximate Cause. — It is well settled that where the violation of a statute or ordinance is the proximate cause of the injury, or contributed thereto, the wrongdoer is liable therefor.

7. STREETS AND HIGHWAYS — Law of the Road — Rule of State Highway Commission as to Meeting of Vehicles. — The rule of the State Highway Commission that all vehicles meeting others on the State highway shall turn to the right of the center of the highway so as to pass without interference, having been promulgated by duly constituted authority for the safety of the traveling public, is applicable to any case arising from a violation of its provisions.

8. AUTOMOBILES — Law of the Road — Driving on the Left Side of the Road — Case at Bar. — The instant case was an action arising out of an automobile accident. Plaintiff's car was following defendant's car at a distance from thirty to fifty feet when they met a car coming from the opposite direction which struck defendant's car, swerved and then collided violently with plaintiff's car, thereby damaging it. It appeared that defendant was driving on the wrong side of the highway.

Held: That defendant was guilty of negligence in driving his car on the left-hand side of the road, and that such negligence contributed to the damage sustained by plaintiff.

9. NEGLIGENCE — Concurrent Negligence — Joint Tort Feasors. — If the concurrent negligence of two or more persons combined together results in an injury to a third person he may recover from either or all. And in determining the liability of either of two persons whose concurrent negligence results in injury, the comparative degrees of negligence are not to be considered, each being liable for the whole even though the other was equally culpable, or contributed in a greater degree to the injury, or the degrees of care used, is not to be considered. And where the negligent conduct of several at the same time and place combined in causing an injury, they acting in concert, all are liable, although they did not conduct themselves negligently by preconcert.

10. NEGLIGENCE — Concurrent Negligence — Joint Tort Feasors. — If the injuries caused by the concurrent acts of two persons are plainly separable, so that the demages caused by each can be distinguished, each would be liable only for the damage which he caused.

11. AUTOMOBILES — Co-Defendants — Question of Liability of one of the Defendants for Jury — Case at Bar. — In the instant case, an action for damages to plaintiff's automobile, the damage was caused when the car of defendant, driving on the wrong side of the road, was struck by a truck coming in the opposite direction which then swerved and struck plaintiff's car.

Held: That it was for the jury to determine whether the damages to plaintiff's car resulted from the concurrence of defendant's negligence or solely from the negligence of the driver of the truck.

12. STREETS AND HIGHWAYS — Law of the Road — Concrete in the Middle of the Road — Case at Bar. — In the instant case, an automobile collision, though defendant was driving too near the left side of the concrete road, the truck with which he collided had ample room to pass on the dirt section of the road. But the concrete was placed there for the use of the public traveling on the highway in both directions, was wide enough to allow automobiles to pass each other in safety, and one driver had no greater rights on the concrete than the other. It was defendant's duty, therefore, to keep to the right-hand side of the concrete when the truck was passing his car.

13. NEGLIGENCE — Sudden Emergency — Automobiles — Ordinary Care for the Jury. — An automobile driver who, by the negligence of another, and not by his own negligence, is suddenly confronted by an emergency and is compelled to act instantly to avoid an accident or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice; and whether he used reasonable care under the circumstances is ordinarily a question for the jury.

14. AUTOMOBILES — Evidence — Appeal and Error — Position Taken in the Trial Court. — In the instant case, an action arising out of an automobile accident, plaintiff testified that defendant swerved his car to the left on the occasion of the accident to avoid some children who suddenly ran into the road. Defendant, however, and his witnesses emphatically denied this and maintained that he kept his car close to the right side. Having taken that position in the trial court, and the jury having settled all conflicts in the evidence against him, defendant cannot be heard on appeal in an attempt to take advantage of plaintiff's testimony with respect to this question of fact.

15. NEGLIGENCE — Contributory Negligence — Connection between Negligence and Injury. — The established rule is, that before an illegal act or omission can be held to be contributory negligence, it must appear that there was causal connection between such act or omission and the injury, and the mere collateral wrong-doing of the plaintiff cannot of itself defeat his right to recover where it did not proximately contribute to his injury.

16. NEGLIGENCE — Contributory Negligence — Connection between Negligence and Injury — Automobiles — Case at Bar. — In the instant case, an action arising out of an automobile accident, an instruction that if plaintiff was driving at a greater rate of speed than fifteen miles an hour at the time of the accident he was guilty of contributory negligence was properly refused, where it appeared from the evidence that the rate of speed at which plaintiff was driving — twenty or twenty-five miles an hour — in no way contributed to the accident nor had any connection therewith.

Error to a judgment of the Corporation Court of the city of Hopewell, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

J. Toomer Garrow and Jacob H. Lavenstein, for the plaintiff in error.

David H. Harrison, for the defendant in error.

CHINN, J., delivered the opinion of the court.

Clifford B. Maile brought an action, by notice of motion, against Harry H. Lavenstein and George Stutz, to recover for damage to said Maile's automobile, resulting from a collision alleged to have been caused by the negligence of the defendants. In the...